In Commonwealth republics retaining the JCPC as their final court of appeal, appeals are made directly to the Judicial Committee itself. In the case of Brunei, appeals are made to the Sultan of Brunei, who then refers the case to the Judicial Committee for advice.

Formerly the Judicial Committee gave a unanimous report, but since the Judicial Committee (Dissenting Opinions) Order 1966 dissenting opinions have been allowed. In July 2007, the Judicial Committee held that it had the power to depart from precedent if it concluded that one of its own previous decisions was incorrect.[4]

The Judicial Committee's permanent home is in London, in the United Kingdom. On 1 October 2009, it moved from the Privy Council Chamber, in Downing Street, to the former Middlesex Guildhall building, which had been refurbished in 2007 to provide a home for both the JCPC and the newly created Supreme Court of the United Kingdom. In this renovated building, Court 3 is used for Privy Council sittings.

The judicial system of the United Kingdom does not have a single highest national court; the Judicial Committee is the highest court of appeal in some cases, while in most others the highest court of appeal is the UK Supreme Court. (In Scotland the highest court in criminal cases is the High Court of Justiciary; the UK Supreme Court is the highest court in civil cases and matters arising from Scottish devolution, the latter previously having been dealt with by the Judicial Committee.) Judgments of the Judicial Committee are not generally binding on courts within the United Kingdom, having only persuasive authority, but are binding on all courts within any other Commonwealth country from which an appeal is heard.

Additionally, the government may (through the Queen) refer any issue to the committee for "consideration and report".

In other courts in the United Kingdom, judgments of the Judicial Committee are only of "persuasive authority" and are not binding as a matter of law. However, since the judges of the committee were usually judges of the House of Lords Judicial Committee (essentially the highest court in the United Kingdom) and now usually justices of the UK Supreme court, its decisions are extremely persuasive and usually followed.

Judges of certain superior courts in Commonwealth nations, who are appointed Privy Counsellors for the purpose of sitting in the JCPC

The bulk of the Committee’s work is done by the Supreme Court Justices, who are paid to work full-time in both the Supreme Court and the Privy Council. Overseas judges may not sit when certain UK domestic matters are being heard, but will often sit when appeals from their own countries are being heard.

Decline in Commonwealth appeals

Initially, all Commonwealthrealms and their territories maintained a right of appeal to the Privy Council. Many of those Commonwealth countries that became republics, or which had indigenous monarchies, preserved the Judicial Committee’s jurisdiction by agreement with the United Kingdom. However, retention of a right of appeal to a court located overseas, made up mostly of British judges who may be out of tune with local values, has often come to be seen as incompatible with notions of an independent nation’s sovereign status, and so a number of Commonwealth members have ended the right of appeal from their jurisdiction. The Balfour Declaration of 1926, while not considered to be lex scripta, severely limited the conditions under which the Judicial Committee might hear cases:[9]

…From these discussions it was clear that it was no part of the policy of His Majesty’s Government in Great Britain that questions affecting judicial appeals should be determined otherwise than in accordance with the wishes of the part of the Empire primarily affected…

Australia

In 1901, the Constitution of Australia limited appeals from the new federal High Court of Australia to the Privy Council, by prohibiting appeals on constitutional matters unless leave is granted by the Australian High Court on inter se questions. Appeals on non-constitutional matters were not prohibited, but the federal Parliament of Australia had the power to legislate to limit them. Subsequently, Australia effectively abolished the right of appeal from the Commonwealth courts by statute.[10][11] Appeals from state courts, a continuation of the right to appeal decisions of colonial courts before 1901, continued, until they were also abolished by the Australia Act 1986, which was enacted by both the UK and Australian parliaments, on the request of all the state governments. The Australian Constitution retains the provision allowing the High Court of Australia to permit appeals to the Privy Council on inter se questions; however, the High Court has stated that it will not give such permission and that the jurisdiction to do so "has long since been spent" and is obsolete.[12]

Canada

Canada created its own Supreme Court in 1875 and abolished appeals to the Privy Council in criminal cases in 1888.[13] However, there were several factors that served to limit the effectiveness of such measures:

Appeals of rulings from the various provincial courts of appeal could still be made directly to the Privy Council, without first going to the Supreme Court of Canada.

In Cushing v. Dupuy (1885),[14] the Privy Council held that the ability to grant special leave to appeal to the Privy Council was unaffected, as the prerogative of the Crown cannot be taken away except by express words.

Nadan, together with the King–Byng Affair, was a major irritant for Canada and provoked the discussion at the 1926 Imperial Conference which led to the Balfour Declaration. With that Declaration and its statutory confirmation in the Statute of Westminster 1931 (Imp, 22-23 Geo 5, c.4)[16] the impediment to abolishing appeals to the Privy Council, whether or not it had been legitimate, was comprehensively removed. Criminal appeals to the Privy Council were ended in 1933. Moves to extend the abolition to civil matters were shelved during the growing international crisis of the 1930s but re-tabled after World War II, and civil appeals ended in 1949, with an amendment of the Supreme Court Act.[17] Cases begun before 1949 were still allowed to appeal after 1949, and the final case to make it to the Council was not until 1959 with the case of Ponoka-Calmar Oils v Wakefield.[18]

The JCPC played a controversial role in the evolution of Canadian federalism in that, whereas most Fathers of Confederation in negotiating the union of the British North American colonies against the backdrop of the American Civil War wished to ensure a strong central government vis-à-vis relatively weak provinces, appeals to the JCPC in constitutional matters progressively shifted the balance in favour of the provinces.[19] While a few commentators have suggested that Canadian First Nations retain the right to appeal to the Privy Council because their treaties predate their relationship to Canada, the JCPC has not entertained any such appeal since 1867 and the dominant view is that no such appeal right exists.[citation needed]

Caribbean Community

The nations of the Caribbean Community voted in 2001 to abolish the right of appeal to the Privy Council in favour of a Caribbean Court of Justice (CCJ). Some debate between member countries and also the Judicial Committee of the Privy Council[20][21] had repeatedly delayed the court's date of inauguration. As of 2005, Barbados replaced the process of appeals to Her Majesty in Council with the CCJ, which had then come into operation. The Republic of Guyana also enacted local legislation allowing the CCJ to have jurisdiction over their sovereign final court of appeals system. Belize acceded to the Appellate Jurisdiction of the CCJ on 1 June 2010. As it stands, a few other CARICOM states appear to be ready for the abolition of appeals to the Judicial Committee of the Privy Council in the immediate future. The government of Jamaica in particular had come close and attempted to abolish appeals to the Judicial Committee without the support of the opposition in Parliament; however, it was ruled by the Judicial Committee of the Privy Council that the procedure used in Jamaica to bypass the opposition was incorrect and unconstitutional.[22] Another attempt will also be forthcoming.[23]

Caribbean governments have been coming under increased pressure from their electorates[24] to devise ways to override previous rulings by the JCPC such as Pratt v A-G (Jamaica, 1993),[25]R v Hughes (Saint Lucia, 2002), Fox v R (Saint Kitts and Nevis, 2002), Reyes v R (2002, Belize), Boyce v R (Barbados, 2004), and Matthew v S (Trinidad and Tobago, 2004), all of which are Privy Council judgments concerning the death penalty in the Caribbean region.[26][27][28]

On 18 December 2006, the Judicial Committee made history when for the first time in more than 170 years it ventured outside London, holding a five-day sitting in The Bahamas. Lords Bingham, Brown, Carswell, and Scott, and Baroness Hale travelled to The Bahamas for the special sitting at the invitation of Dame Joan Sawyer, then the President of the Court of Appeal of the Bahamas;[30] the Committee returned to The Bahamas in December 2007 for a second sitting. On the latter occasion, Lords Hope, Rodger, Walker, and Mance, and Sir Christopher Rose, heard several cases. At the end of the sitting, Lord Hope indicated that there may be future sittings of the Committee in The Bahamas,[31] and the Committee has indeed sat in The Bahamas again, in 2009.

It should be noted, however, that decisions of the Privy Council before 1 July 1997 on non-Hong Kong appeals, just as decisions of British courts in general, are not strictly binding on Hong Kong courts, for all that such decisions are persuasive and will be treated with great respect by courts of Hong Kong. As Lord Millet, a retired Law Lord sitting as a Non-permanent Judge of the Court of Final Appeal, aptly summarised the position in China Field Limited v Appeal Tribunal (Buildings),[34]

Decisions of the Privy Council on Hong Kong appeals before the 1 July 1997 remain binding on the courts of Hong Kong. This accords with the principle of continuity of the legal system enshrined in Article 8 of the Basic Law. Decisions of the Privy Council on non-Hong Kong appeals are of persuasive authority only. Such decisions were not binding on the courts in Hong Kong under the doctrine of precedent before 1 July 1997 and are not binding today. Decisions of the House of Lords before 1 July 1997 stand in a similar position. It is of the greatest importance that the courts of Hong Kong should derive assistance from overseas jurisprudence, particularly from the final appellate courts of other common law jurisdictions. This is recognised by Article 84 of the Basic Law.

Pursuant to Article 158 of the Basic Law (the constitutional instrument of the SAR), the power of final interpretation of the Basic Law is vested not in the Court of Final Appeal of Hong Kong but in the Standing Committee of the National People's Congress of China, which, unlike the Judicial Committee of the Privy Council, is a political body rather than an independent and impartial tribunal of last resort.

Jamaica

In May 2015, the JamaicanHouse of Representatives approved with the necessary two-thirds majority bills to end legal appeals to the Judicial Committee of the Privy Council and make the Caribbean Court of Justice Jamaica's final Court of Appeal. The reform will be debated by the Jamaican Senate, however, the government will need the support of at least one opposition Senator for the measures to be approved by the required two-thirds majority.[38][39]

Malaysia

Malaysia abolished appeals to the Privy Council in criminal and constitutional matters in 1978, and in civil matters in 1985.

New Zealand

Proposals to abolish appeals to the Privy Council in New Zealand date back to the early 1980s.[40] It was not until October 2003 that New Zealand law was changed to abolish appeals to the Privy Council in respect of all cases heard by the Court of Appeal of New Zealand after the end of 2003, in favour of a Supreme Court of New Zealand. In 2008, Prime Minister John Key ruled out any abolition of the Supreme Court and return to the Privy Council.[41]

Judgment was delivered on 3 March 2015 in the last appeal from New Zealand to be heard by the Judicial Committee of the Privy Council.[42][43][44]

Singapore

Singapore abolished Privy Council appeals in all cases save those involving the death penalty, or in civil cases where the parties had agreed to such a right of appeal, in 1989. The abolition followed a decision of the Privy Council the previous year that criticised the "grievous injustice" suffered by the opposition politician J. B. Jeyaretnam at the hands of the Government of Singapore. The remaining rights of appeal were abolished in 1994.